AN AUSTRALIAN DECLARATION OF RECOGNITION: THE CASE FOR SEMI-ENTRENCHED SYMBOLISM.

• Date: 01 August 2020
• Author: Morris, Shireen
• Published date: 01 August 2020
• Author: Morris, Shireen

Contents I Introduction II The Referendum Council's Proposal for an Extra-Constitutional Declaration A Background: Controversial Constitutional Poetry 1 The Debate about Inserting Symbolic Values into the Australian Constitution 2 The Expert Panel's Hybrid Approach 3 Objections to the Expert Panel's Approach 4 The Shift to Extra-Constitutional Articulation of Symbolic Statements B The Uluru Statement and the Referendum Council Approach 1 The Potential Value of an Extra-Constitutional Declaration 2 Possible Content of an Extra-Constitutional Declaration III A Semi-Entrenched Declaration of Recognition A What Is Semi-Entrenchment? B Engendering Enduring Political, Moral and Cultural Legitimacy C Would a Semi-Entrenched Declaration Be Quasi-Constitutional? IV Exploring Options for a Semi-Entrenched Declaration A Constitutional Context: Can the Commonwealth Parliament Bind Itself? 1 Option One: A Standalone Declaration Enacted by Federal Concurrence 2 Option Two: Inserting a Declaration into the Australia Act 3 Option Three: Inserting the Declaration into the Covering Clauses of the Constitution Act B What about Popular Assent? C Is Legislative Enactment Necessary? V Conclusion I INTRODUCTION

In June 2017, the Referendum Council tasked with advising on Indigenous constitutional recognition endorsed the historic Uluru Statement from the Heart ('Uluru Statement') and recommended a singular constitutional reform: a constitutionally guaranteed First Nations voice. (1) Since then, the proposal for a First Nations voice in the Constitution has garnered the vast majority of public, political and scholarly attention. (2) However, the Referendum Council also made a second, extra-constitutional recommendation which has engendered little attention. It proposed that a symbolic, inspiring and unifying Declaration of Recognition ('Declaration') should accompany the recommended constitutional change. The Referendum Council also recommended that the Declaration should be enacted concurrently by all Australian Parliaments. (3)

This innovative extra-constitutional recommendation raises intriguing legal and political questions. What are the possibilities for a Declaration of this kind? Would a Declaration enacted by federal concurrence carry elevated and enduring moral and political importance in Australian life? Might it also be enacted to be semi-entrenched? This article explores the legal possibilities and potential symbolic power that could be enlivened utilising variations of Australia's federal unanimity procedure, as alluded to by the Referendum Council. Cooperative federal action in 1986 enabled Australia to update its relationship with the United Kingdom ('UK') through the Australia Act 1986 (Cth) ('Australia Act') and Australia Act 1986 (UK) (collectively, 'Australia Acts'). (4) It could also be used to update Australia's relationship with the First Nations, alongside substantive reform of the Constitution through a First Nations voice. Given its reconciliatory purpose, however, I suggest a Declaration should be endorsed not only by all Australian Parliaments, but also by Indigenous assent arising from genuine negotiation, perhaps through the First Nations voice (if the institution were already in operation). The resulting Declaration, born by co-operation between Australian Parliaments and the First Nations of Australia, might then come to represent a historic reconciliatory agreement of enduring significance.

The article proceeds in five Parts. Part II explores the longstanding debate about inserting symbolic values into the Constitution and explains why ideas for extra-constitutional articulations of symbolic statements have arisen in the Indigenous constitutional recognition debate. I examine past use of 'no legal effect' clauses that attempt to limit the constitutional consequences of symbolic insertions, as well as responses to the Expert Panel's proposed symbolic amendments in 2012, to show that an extra-constitutional Declaration provides a way forward that addresses concerns about unintended legal consequences, as well as resulting concerns about insincerity of sentiment.

Drawing inspiration from the United States' ('US') Declaration of Independence and New Zealand's Treaty of Waitangi, I suggest that a symbolic document of this kind could be enacted to carry enduring political, moral and cultural authority, even where it does not entail legally enforceable rights or obligations. The relationship between symbolism and practical reform is complex, but it is wrong to assume that symbolic statements must be in the Constitution to have meaning and that articulations of values must be justiciable to have power. (5) In Australia, while poetic articulations of values and aspirations may be important for nation-building and reconciliation, they need not be captured and constrained in the Constitution, nor must the ultimate meanings of symbols declared be controlled by the courts. Rather, symbolic words can live and flourish outside the Constitution, in the domain of politics, philosophy and culture. They can be owned and argued by the Australian people and their representatives. The power of such a Declaration would thus be moral, cultural and political, rather than legal. This article explores the possible content of an extra-constitutional Declaration of this kind including its potential in bringing together the three parts of the Australian national story: the Indigenous, the British and the multicultural.

Part III turns to the possibility of semi-entrenchment, prompted by the Referendum Council's suggestion that the Declaration be concurrently legislated by all Australian Parliaments. I define semi-entrenchment as legislation subject to a legally valid special amendment and repeal requirement that is more onerous than ordinary legislation but less onerous than a double majority referendum under s 128. Where the special amendment procedure is legally ineffective, but nonetheless reiterated in the legislation and generally respected, this is better described as political and moral entrenchment. There may be benefits to both. Apart from increased longevity, the heightened public engagement and deliberation usually required by special enactment and amendment procedures can help generate political consensus and widespread national ownership of the outcome. (6) If an extra-constitutional Declaration were endorsed co-operatively by Australian Parliaments and the First Nations, it could in time be seen as a document of enduring status. I then consider whether a semi-entrenched Declaration of this kind may be considered quasi-constitutional. I suggest its symbolic content and purpose means it could be understood as quasi-constitutional only in a political, moral and cultural sense, but not in a legal supremacy sense. I therefore distinguish the legal quasi-constitutionality of substantive rights-protecting legislation that has emerged in Canada and the UK7 from the potential quasi-constitutionality of a symbolic Declaration of political, moral and cultural authority. This, however, raises questions about why the Declaration needs to be in legislation at all, which I address later in the article.

In Part IV, I explore possibilities for semi-entrenchment under Australia's constitutional arrangements. After recapping the constitutional conditions that would seem to prevent the Commonwealth Parliament from legislating to bind itself, I note the one exception to this general rule: the federal unanimity procedure provided in s 15 of the Australia Act. Australia's constitutional arrangements confer on Australian Parliaments the cooperative power to enact semi-entrenched legislation of special and enduring significance through unanimous federal action. I outline three possibilities for utilising this procedure in relation to a Declaration, each entailing different legal and political implications in relation to semi-entrenchment.

The first possibility, along the lines suggested by the Referendum Council, is for all Australian Parliaments to concurrently legislate a Declaration. I suggest this could occur pursuant to an inter-governmental agreement. To this procedure I would add Indigenous assent. This would not result in legal semi-entrenchment, but it would likely create a sense of moral and political entrenchment. The Declaration would reflect a historic reconciliatory agreement of symbolic power.

The second possibility is to use the federal unanimity procedure to insert the Declaration into the Australia Act. Again, to this procedure I would add Indigenous assent. This too may not result in legal semi-entrenchment, though it would likely imbue the Declaration with a sense of political and moral entrenchment. The Australia Act updated Australia's relationship with the UK; it could also update Australia's relationship with the First Nations and may be a suitable place for the nation to symbolically bring together the three parts of our national story. However, the Australia Act is also highly technical and legalistic, which should also be considered.

The third possibility in my view presents the only way to achieve legally effective semi-entrenchment of a Declaration. Australian Parliaments could cooperatively insert a Declaration into the covering clauses (perhaps into a new covering cl 10) of the Commonwealth of Australia Constitution Act 1900 (UK) ('Constitution Act'). Section 15 of the Australia Act empowers the Commonwealth, with the concurrence of the States, to alter s 8 of the Statute of Westminster 1931 (Imp) ('Statute of Westminster), to thereby implement an appropriate procedural mechanism for amendment of the Constitution Act. This procedure could then be followed to amend the covering clauses and insert the Declaration. Again, a requirement of Indigenous assent should be added with respect to a Declaration. This procedure, I suggest, would result in the Declaration being legally semi-entrenched, as well...